Factsheet

3.23
Fundamental Legislative Principles
In Queensland, fundamental legislative principles
(FLPs) require that legislation (both Bills and
subordinate legislation) should have sufficient
regard to the rights and liberties of individuals
and to the institution of Parliament.
Fundamental legislative principles are defined
in Section 4 of the Legislative Standards Act
1992 (Qld). This states that fundamental
legislative principles are the principles relating
to legislation that underlie a parliamentary
democracy based on the rule of law.
Regarding FLPs, Section 4(3) of the Legislative
Standards Act 1992 states that
Whether legislation has sufficient regard to
rights and liberties of individuals depends on
whether, for example, the legislation(a) makes rights and liberties, or obligations,
dependent on administrative power only
if the power is sufficiently defined and
subject to appropriate review; and
(b) is consistent with principles of natural
justice; and
(c) allows the delegation of administrative
power only in appropriate cases and to
appropriate persons; and
(d) does not reverse the onus of proof in
criminal proceedings without adequate
justification; and
(e) confers power to enter premises, and
search for or seize documents or other
property, only with a warrant issued by a
judge or other judicial officer; and
(f) provides appropriate protection against
self-incrimination; and
(g) does not adversely affect rights and
liberties, or impose obligations,
retrospectively; and

(h) does not confer immunity from proceeding

or prosecution without adequate
justification; and
(i) provides for the compulsory acquisition of
property only with fair compensation; and
(j) has sufficient regard to Aboriginal tradition
and Island custom; and
(k) is unambiguous and drafted in a sufficiently
clear and precise way.
Section 4(4) of the Legislative Standards Act 1992
states that
Whether a Bill has sufficient regard to the
institution of Parliament depends on whether,
for example, the Bill(a) allows the delegation of legislative
power only in appropriate cases and to
appropriate persons; and
(b) sufficiently subjects the exercise of a
delegated legislative power to the scrutiny
of the Legislative Assembly; and
(c) authorises the amendment of an Act only by
another Act.
Section 4(5) of the Legislative Standards Act 1992
states that
Whether subordinate legislation has sufficient
regard to the institution of Parliament depends
on whether, for example, the subordinate
legislation(a) is within the power that, under an Act or
subordinate legislation (the authorising
law), allows the subordinate legislation to
be made; and
(b) is consistent with the policy objectives of
the authorising law; and
(c) contains only matter appropriate to
subordinate legislation; and

Updated July 2015

Fundamental Legislative Principles

(d) amends statutory instruments only; and
(e) allows the subdelegation of a power
delegated by an Act only(i) in appropriate cases and to appropriate
persons; and
(ii) if authorised by an Act.

Background to FLPs in Queensland

In Queensland the former Committee of
Subordinate Legislation began examining whether
subordinate legislation trespassed unduly on
rights previously established by law in 1975.
1

P +61 7 3553 6000

F +61 7 3553 6419

www.parliament.qld.gov.au
communications@parliament.qld.gov.au

Two reviews in 1991 and 1992 by the Queensland

Electoral and Administrative Review Commission
recommended that Queensland replace the
Committee of Subordinate Legislation with a
Scrutiny of Legislation Committee that would
be given an expanded remit to allow it to
review both primary legislation (Bills) and
subordinate legislation (regulations and statutory
instruments).
The Legislative Standards Act 1992 saw FLPs
enshrined into law and the Committee of
Subordinate Legislation then began scrutinising
subordinate legislation to ensure there had been
sufficient regard given to the newly enacted FLPs.
The Parliamentary Committees Act 1995
established a new Scrutiny of Legislation
Committee to examine all Bills and subordinate
legislation to consider the application of FLPs
to particular Bills and subordinate legislation,
and the lawfulness of particular subordinate
legislation.

Queenslands new committee system

and FLPs
In 2010, a review of the functions and role of
Queenslands Parliamentary committees led to
the instigation of a new system of portfolio-based
committees in mid-2011.
One of the key roles of the Parliaments new
portfolio committees is set out in section 93
of the amended Parliament of Queensland
Act 2001 which now makes each portfolio
committee responsible for examining all Bills and
subordinate legislation within its portfolio area,
rather than this being done by a distinct Scrutiny
of Legislation Committee (which was abolished
under the reforms).

Factsheet

3.23

The expanded roles of the portfolio committees

mean they must also consider the policy to be
given effect by the legislation (a function not
previously undertaken by the former scrutiny
committees), the application of FLPs to the
legislation, and, in respect of subordinate
legislation, the lawfulness of the subordinate
legislation as made. Those committees also
monitor whether Explanatory Notes or Regulatory
Impact Statements provided with legislation
contain the information required by the
Legislative Standards Act.

Compliance is determined by the

Parliament
Compliance with FLPs is not mandatory and
it is for the Parliament to determine whether
legislation has sufficient regard to one or more
of the FLPs and whether sufficient justification
is given in the Bills explanatory notes for any
departure from them.
There may be a number of situations where
common rights and liberties need to be qualified
or curtailed for a legitimate social objective
(eg. during times of war or natural disasters).
Legislative measures taken to protect society
may also intrude on individual rights and involve
an acceptable breach of FLPs. For example one of
the FLPs requires that any compulsory acquisition
of property (by the State from an individual) can
only occur if the individual is fairly compensated
for their loss. A permissible exception to this FLP
would be legislation that allows the State to seize
assets bought using the proceeds of crime. This
is because it has been determined that there is a
societal expectation that criminals should not be
allowed to profit from their crimes, and seizing
ill-gotten gains presents a deterrence to future
criminal activity.
1

Electoral and Administrative Review Commission (1991)

Report on Review of the Office of the Parliamentary Counsel,
Government Printer, Brisbane; Electoral and Administrative
Review Commission (1992) Report on Review of Parliamentary
Committees, Government Printer, Brisbane

Updated July 2015